The Supreme Court today handed down a landmark judgment. The decision concerns employment tribunals which are designed to provide employees with an inexpensive and accessible method of bringing claims against employers who have acted unlawfully.

Transfer the costs burden of the tribunal system from taxpayers onto its users;

Deter people from bringing unmeritorious or vexatious claims; and

Encourage parties to settle their disputes earlier.

The fees ranged from £390 to £1,200, based on the complexity of the case rather than its value. Their introduction resulted in a “dramatic and persistent” fall, of around 70%, in the number of claims being pursued.

In March 2017, UNISON and the Lord Chancellor appeared before seven judges in the Supreme Court. The former argued that the Fees Order unlawfully interfered with the right of access to justice of those using tribunals and that the fees discriminated unlawfully against women and other protected groups. In two unanimous judgments, delivered by Lord Reed and Lady Hale respectively, the court found for UNISON on both counts and quashed the Order with immediate effect. This blog focuses on the first judgment.

The decision is strongly worded. On more than one occasion, the court notes that the Lord Chancellor was unable to explain how the figures making up the fees were even reached. It is also made clear that the system by which claimants could apply to have all or part of their fees remitted was inadequate. In short, the court found that there was a real risk that the Fees Order effectively prevented access to justice; first, by making the service unaffordable to many and second by rendering it futile or irrational to pursue certain claims:

[M]any claims which can be brought in ETs do not seek any financial award: for example, claims to enforce the right to regular work breaks or to written particulars of employment. Many claims which do seek a financial award are for modest amounts, as explained earlier. If, for example, fees of £390 have to be paid in order to pursue a claim worth £500 (such as the median award in claims for unlawful deductions from wages), no sensible person will pursue the claim unless he can be virtually certain that he will succeed in his claim, that the award will include the reimbursement of the fees, and that the award will be satisfied in full.

Twitter has since been awash with statements like the following by Michael Reed of the Free Representation Unit:

They are right to celebrate. In a decisive and unanimous decision, the Fees Order has been relegated, at least in its current form, to the burgeoning scrapheap of failed policies imposed by Chris Grayling during his tenure as Lord Chancellor. Crucially, aside from the immediate relief provided by the court, the judgment also stands as one of the clearest and most impressive statements about the importance of access to justice as an aspect of the rule of law.

The notion of ‘the rule of law’ can be found in the preambles of the Universal Declaration of Human Rights, the European Convention on Human Rights and has pride of place in various other constitutional documents around the world. Despite its apparent importance, the phrase is often left unencumbered and perched alongside similarly vague references to lofty principles such as “liberty” and “freedom”.

In a bid to lend greater granularity to the principle, Tom Bingham, previously a Law Lord himself, rendered the following definition in his seminal book on the subject:

[T]hat all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered by the courts.

Like Tom Bingham’s book, Lord Reed’s judgment begins with a brief excursion through several centuries of common law jurisprudence. He begins in 1215 with the oft quoted clause 40 of Magna Carta: “[t]o no one will we sell, to no one will we deny, or delay right or justice”. Therein he identifies an early statement of the notion of access to justice which is “inherent in the rule of law” and constitutes a thread which runs through our common law history.

The history lesson and defence of the principle are also coupled with a sharp riposte. It is directed at those identified as labouring under the misapprehension that the administration of justice is a “service” like any other – only impacting those directly involved.

Lord Reed explains:

Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established […] The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

He adds that the mere knowledge that we have the ability to place our grievances before a court, to be determined based on a set of publicised legal principles is what “underpins everyday economic and social relations”. His words, buttressed by the unanimity of the decision, stand as an erudite and powerful defence of one of the central principles undergirding our democracy. The judgment, which serves as an injunction to the executive not to overstep the mark, is also liable to have far-reaching implications.

Importantly, in this connection, the ruling sits alongside a string of similar cases. In 2013, Barbara Gordon-Jones won her judicial review as the High Court declared Chris Grayling’s restriction on books being sent into prisons to be unlawful. Earlier this year, the Court of Appeal ruled that the removal of legal aid for prisoners at particular hearings produced a regime which was “systematic[ally] unfair”. Most recently, the legal aid cuts introduced on Chris Grayling’s watch came under fire by Mr Justice Francis in the Charlie Gard litigation.

Incredibly, it therefore appears that despite making every attempt to constrain judicial review proceedings and to devastate the legal system, Chris Grayling, and the Conservative Party of which he forms a part, have inadvertently achieved the opposite. By backing lazy and unlawful policies, they have handed our judges every possible opportunity to assert their constitutional role and push back against overreaches by the Executive. They have also managed, somehow, to inspire bipartisan sympathy in the media over the denial of legal aid to Charlie Gard’s parents.

Yesterday, the High Court delivered judgment in a case brought by the Campaign Against Arms Trade against the Secretary of State for International Trade.

Over the last two years, Saudi Arabia has spearheaded an international military coalition in Yemen. The band of nine nations responded to a call for military aid by President Hati of Yemen after Houthi rebels occupied the capital city of Sana’a and its surrounding territory in early 2015. At the heart of the case before the High Court lay the decision of the Secretary of State not to suspend arms export licenses to Saudi Arabia in light of the violations of the laws of war which were alleged to have been perpetrated by the Coalition during the conflict.

If a company wishes to export arms from the UK it must first obtain a license to do so from the Export Control Organisation (ECO). Today, the ECO is an arm of the Department for International Trade, headed by the Secretary of State. This framework was developed after the 1997 Labour Manifesto pledged:

[N]ot [to] permit the sale of arms to regimes that might use them for internal repression or international aggression [and to] increase the transparency and accountability of decisions on export licenses for arms. And … support an EU code of conduct governing arms sales.

In October 2000, the Government adopted the Consolidated Criteria – a policy echoing the EU Code of Conduct on Arms Exports. It contained eight criteria for the ECO to consider before granting licenses.

The Applicant relied, specifically, on Criterion 2c which stipulates:

[An official will not] grant a license if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law.

In addition, the Applicant drew attention to the ‘suspension mechanism’. The mechanism is designed to allow the Government “quickly to suspend the processing of pending license applications to countries experiencing a sharp deterioration in security or stability”.

Drawing on the above, the Applicant contended that the Secretary of State:

Failed to ask the correct questions and make sufficient enquiries when conducting its Criterion 2c assessment;

Failed to apply the ‘suspension mechanism’ when it should have done; and

Could not rationally have concluded that Criterion 2c was not satisfied in the instant case.

Lord Justice Burnett and Mr Justice Haddon-Cave note fairly early on that the “evidence presented [was] voluminous”. It is also fair to say that the evidence, at times, makes for harrowing reading. The decision is replete with reports by the United Nations, the European Parliament, Amnesty International and numerous other organisations, detailing “systematic indiscriminate attacks … on hospitals, schools and mosques” and the wanton destruction of people “going about their daily activities”. Many of the reports also detail allegedly deliberate attacks on “warehouses, fishing boats and other civilian infrastructure”.

The United Nations overall casualty figure for the period from March 2015 to September 2016 includes 10,963 civilians, 4,014 of whom perished.

Perhaps the most compelling evidence provided by the Applicant emanated from our own legislature. In September 2016, the House of Commons Business Innovation and Skills and International Trade Committees published a joint report which concluded:

In the case of Yemen, it is clear to us that the arms export licensing regime has not worked. We recommend that the UK suspend licenses for arms exports to Saudi Arabia, capable of being used in Yemen.

The report was based on the same evidence which fuelled the Applicant’s case, including information – later confirmed by Saudi Arabia – that UK-made cluster munitions had been used during the conflict.

The Secretary of State, conversely, relied heavily on evidence of process rather than substance.

The Court accepted early on that the Criterion 2c assessment involved the Secretary of State drawing on advice from an array of sources and expertise. As a result, his assessment was entitled to “great weight” and the Applicant was restricted to making an ‘irrationality’ argument. The question for the Court, therefore, was whether the decisions under challenge were so unreasonable that no reasonable Secretary of State could have made them.

Tellingly, Lord Bingham once characterised those pursuing irrationality arguments as having “a mountain to climb”.

In evidence, the Secretary of State drew attention to the close liaison between various departments and arms-length organs which regularly produced international humanitarian law updates on the Yemeni conflict. The Court made clear that this system bore “all the hallmarks of a rigorous and robust, multi-layered process of analysis”. It was also moved by evidence that Saudi officials hoped to improve their own procedures. This included, importantly, the creation of JIAT – a permanent body made up of civilian and military experts and designed to investigate alleged violations of the laws of war.

Based on the above evidence, the Court ruled against the Applicant on all three grounds.

The decision has already generated an abundance of media commentary. In The Brief this morning, the headline reads as follows:

The statement is more than a little misleading.

While the judgment does indeed include the phrase “the Coalition were not deliberately targeting civilians”, it is prefaced, crucially, by the words “the open and closed evidence demonstrates that the Secretary of State was rationally entitled to conclude as follows …” (my emphasis). Indeed, the Judges made clear early on that their role was not to determine whether or not Saudi Arabia was operating contrary to international law. Rather, they were examining the process by which the Secretary of State came to his decision and whether or not it was reasonable for him to do so.

In the Court’s own words:

[I]n an area where the Court is not possessed of the institutional expertise to make the judgments in question, it should be especially cautious before interfering with a finely balanced decision reached after careful and anxious consideration by those who do have the relevant expertise to make the necessary judgments.

The decision will nonetheless come as a blow to those pushing against the arming of Saudi Arabia. But it is not all bad news for the campaigners. As Rachel Sylvester notes in The Times today, the Judges did conclude that there was a “substantial body of evidence suggesting that the Coalition committed serious breaches of international humanitarian law”. The Campaign Against the Arms Trade has also indicated that it intends to appeal the decision.

Much like the war in Yemen, it appears that neither the legal battle nor the campaigns against Saudi Arabia’s military endeavours are over.

The late Christopher Hitchens once referred to nuclear bombs as ‘apocalyptic weapons’. His words were far from hyperbole. In an interview in the Guardian, Sunao Tsubi, described how he was convinced that he had “entered a living hell on earth” after witnessing the ruination of Hiroshima by “Little Boy” – an atomic bomb loosed by an American plane on 6 August 1945. It erased more than 140,000 lives.

In spite of the horrors of Hiroshima and Nagasaki, more than 16,000 nuclear weapons are still in existence. The United Kingdom lays claim to just over 200 warheads. During the course of the general election the question of whether we should ever put our arsenal to use was the subject of fierce debate. In one particularly striking interview, Piers Morgan asked the following question to Dianne Abbott:

What if ISIS … get a nuclear weapon and are about to use it and you know where they are and you know where they are going to fire it from?

He proceeded to berate Abbott for not stating, conclusively, that her party would order a pre-emptive, nuclear strike on a terrorist group situated within another state.

In my view, she was perfectly correct not to do so. His hypothetical question failed to account for a huge number of variables, including the fallibility of human intelligence and the levels of collateral damage involved. To press the nuclear button on Piers Morgan’s terms, however, would not only be morally vacuous, but illegal.

When it comes to warfare, international law consists of three distinct components:

1. The legal principles states must consult before using force (jus ad bellum);

2. International humanitarian law, or the legal principles states must consult during a war (jus in bello); and

3. The largely theoretical principles governing what happens after war (just post bellum).

In terms of the first set of rules, while it is clear that states have the right to defend themselves, since the 18th century it has only been permissible to carry out a pre-emptive strike in the face of an imminent threat. While some have sought to widen the rule, there is scant support for such a move. It seems, therefore, that without flawless intelligence indicating an immediate nuclear attack Morgan would be advocating a pretty serious violation of international law.

Assuming that we did receive such perfect intelligence, what do the laws governing our conduct during war have to say? In 2005, Jean-Marie Henckaerts and others produced the most comprehensive study of international humanitarian law to date. The first volume, which runs to some 600 pages, contains just a single leaf on nuclear weapons. Indeed, while treaties exist banning all manner of weapons deemed likely to cause superfluous suffering, there is no comprehensive ban on nuclear weapons.

Despite the lack of any specific ban, the use of nuclear weapons would still be illegal in most circumstances. This is because the use of such an indiscriminate weapon will usually violate the principle of distinction, which requires armed forced to distinguish between legitimate (military) and illegitimate (civilian) targets.

International Court of Justice

In what circumstances, though, might it be legitimate to make use of nuclear weapons? That was the question posed by the United Nations General Assembly to the International Court of Justice in 1994. The resulting advisory opinion makes for a fascinating read.

To the dismay of many, the majority opinion refused to rule out the use of nuclear weapons per se. Rather, it found that a state may still have the right to use such a weapon in an “extreme circumstance of self-defence, in which its very survival would be at stake”. The said state would nonetheless be bound by the legal principles detailed above.

In his dissenting opinion, Judge Schwebel suggested that the majority view was too restrictive. He proposed two situations in which the use of a nuclear weapon might not violate the above principles. First, the use of a small, tactical nuclear weapon against a submarine. Second, against a battalion situated in a remote desert.

The use of nuclear weapons in the above situations could potentially satisfy the principles of distinction and military necessity. However, it is difficult to see how using such a weapon would be proportionate. Importantly, the majority opinion dealt with this point by making clear that a proportionality assessment must factor in environmental considerations:

[T]he environment is not an abstraction but represents a living space [and] the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States … is now part of the corpus of international law … States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives.

Thus, even if a legitimate target is discerned, it is unlikely to be lawful to use a nuclear warhead which could incinerate an area the size of a city, rendering it uninhabitable.

It is pertinent to say a little something, at this juncture, about the jus post bellum. The importance of developing legal principles which govern our activity after a war has taken place has gained traction in recent years, particularly as a result of the West’s misadventures in the Middle East.

In this respect, some theorists have attempted to establish an obligation on participants in war to restore any environmental damage which they cause. If such a principle were to crystallise, while it would not render the use of nuclear weapons illegal per se, it would make their use vastly more expensive, to the point of being untenable. Douglas Lackey also suggests that placing such constraints within the body of the laws of war would incentivise military commanders to take them seriously.

As it stands, international law appears to render the use of nuclear weaponry illegal in all but the most exceptional circumstances. However, the potency of nuclear deterrent theory, coupled with a judicial reticence to pronounce on controversial questions, is likely to preclude an explicit ban for at least the foreseeable future.

It was the LRA who abducted and killed people in northern Uganda, and I am one of the people against whom the LRA committed atrocities.

On a crisp morning, in early December 2016, Dominic Ongwen rose to his feet at the International Criminal Court (ICC) in the Hague. He spoke the above words before pleading not guilty to 70 counts of war crimes and crimes against humanity.

The laundry list of accusations levelled against him include murder, enslavement, cruel treatment of civilians and the use of children under the age of 15 to participate actively in hostilities. It is this final charge which makes Dominic Ongwen unique. As Kasande and Ladisch explain:

Ongwen … is the first person facing trial at the ICC for crimes of which he was also a victim.

Background

Born in Acholiland, northern Uganda, Ongwen entered a country riven with deep ethnic and sectarian divides. In 1985, a coup d’êtat, the fourth since Ongwen’s birth, resulted in the overthrow of the first president also to hail from Acholiland. His demise was at the hands of Yoweri Musevini, who took up the mantle of President of Uganda.

This coup acted as a catalyst, galvanising Joseph Kony along with thousands of rebel fighters across the region. In 1988 they established the Lord’s Resistance Army (LRA). Its purpose was to wage an armed rebellion against the Musevini administration. The LRA became notorious for its brutality: from the “deliberate targeting of civilians” to the plundering of villages they passed through as they swept across 5 African nations. It was perhaps most well-known for the abduction of some 30,000 children over the last 30-years. Male abductees were taught to fight as soldiers in their LRA: their initiation a brutal cocktail of military training and indoctrination.

At the tender age of 10 years old, Ongwen was abducted by the LRA. His destiny, he was told, was to fight for the rights of the Acholi people. A witness explained to Erin K. Baines, Professor at the Liu Institute for Global Issues, that when he was taken Ongwen was “so small he had to be carried for the first few days by other captives”.

He soon found his feet, however. Ascending through the ranks of the organisation, Dominic Ongwen ultimately became a high-ranking commander. The testimony of survivors and other LRA fighters indicates that he was directly involved in some of the worst atrocities to hit the region, including the Makombo massacre which left 340 civilians dead. In 2005, a warrant for his arrest was sealed by judges at the ICC.

At an early hearing, and drawing the Pre-Trial Chamber’s attention to their client’s tumultuous past, the defence team attempted to argue that the case should be dismissed on the basis that the accused should benefit from “international legal protection” as a child soldier himself. The Chamber stated, tersely, that the argument was “entirely without legal basis“.

Alternatively, the accused argued that the case should be dismissed by virtue of the fact that, as a child soldier, he was under duress when he committed the crimes with which he was charged. The Pre-Trial Chamber gave this argument short shrift because, crucially, to succeed on a defence of duress the accused must not cause greater harm than the harm that they seek to avoid. This was clearly not made out on the evidence before the Chamber.

His status as a former-child soldier, therefore, does not exonerate him. However, it will be open to the defence team to rely on it as a significant mitigating factor, if he is ultimately convicted.

While some might argue that putting him on trial is an exercise in selective justice, the buck must stop somewhere. Dominic Ongwen was a child when he was abducted, but he soon became an adult and made choices which others did not. He ascended into the ranks of the LRA High Command, instead of fleeing the organisation. He allegedly ordered the rape and pillage of hundreds of villages across Africa and despite – or perhaps because of – his past he is charged with recruiting thousands of child soldiers. It is right that he be tried for those crimes.

It should be born in mind, however, that if he is convicted punitive measures are just one aspect of international criminal justice – an aspect which is arguably of marginal importance to those affected by crimes on such a massive scale. More crucial is Article 79 of the Rome Statute. It establishes an arm of the Court known as the Trust Fund for Victims (TFV).

The TFV is funded by a mixture of forfeitures of property post-conviction, fines and voluntary contributions. It has a dual mandate which enables it to provide:

1. ‘assistance’ to individuals in countries blighted by war, but without the need for an individual to have been convicted; and

2. ‘reparations’ which embellish the assistance provided with a symbolic element as these are ordered only once an individual has been convicted of a crime.

Combining the two mandates, the TFV has so far benefitted over 56,000 victims of crime. It is thanks, in part, to this mechanism that the ICC stands, today, at the forefront of transitional justice.

To take the case of Thomas Lubanga as an example: he too was convicted, in 2012, of enlisting and conscripting children under the age of 15. After his trial, the TFV set to work devising a reparations plan. The process, which took several years, involved consulting with various stakeholders. Around 40% of those consulted were children, including former child soldiers. This victim-centric approach resulted in a plan involving the rehabilitation of former child soldiers and their families in the Democratic Republic of the Congo (DRC). The ICC approved the plan last year.

If Dominic Ongwen is guilty as charged, his conviction would offer Uganda, for the first time, a comprehensive reparations programme. It is for this reason that for many victims, whose lives were torn asunder by the actions of the LRA, reparations alone will be the “sign of a successful trial”. A reparations package focused principally on the rehabilitation of former child soldiers would also resonate far more deeply in light of the accused’s tragic past – symbolising the end of a vicious cycle which has seen countless children turned into perpetrators of the very crimes which cost them their innocence.

]]>https://arguably2015.wordpress.com/2017/05/20/the-trial-of-dominic-ongwen/feed/03737891323_d114d87651_b-635x357arguably2015ongwen3737891323_d114d87651_b-635x357pr1126-webExplainer: The Cryogenic Freezing Casehttps://arguably2015.wordpress.com/2017/01/07/explainer-the-cryogenic-freezing-case/
https://arguably2015.wordpress.com/2017/01/07/explainer-the-cryogenic-freezing-case/#commentsSat, 07 Jan 2017 22:58:46 +0000http://arguably2015.wordpress.com/?p=1331Read more "Explainer: The Cryogenic Freezing Case"]]>Note: this is a re-post. If you want to view the original (19 Nov 2016) and for more quality content about law, politics and human rights head over to yourrightsmatter.uk.
Enter a caption

Mr Justice Peter Jackson was praised earlier this year for being the first judge to use an emoji in a judgement. In what has been lauded as an “exemplary instance of plain English”, Peter Jackson J explained in simple terms why two children, aged 10 and 12, could only have limited contact with their mother. She was a Muslim convert who had intended to spirit them away to Syria.

Just yesterday Peter Jackson J managed to cut a mass of complex issues down to size yet again in the case of JS v M and F. The case concerned the dying wish of a young girl known only as JS. For our purposes, I will give her the name Julie. Julie was 14 years old and had an aggressive form of cancer. Her wish was to be cryogenically frozen upon death. In her own words:

I have been asked to explain why I want this unusual thing done. I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.

Her solicitors described her as bright and intelligent and her mother and maternal grandparents supported her decision – having cobbled together the sum of £37,000 to allow Julie to have her body frozen.

The process involves the body being injected with a number of chemicals designed to preserve vital organs. The body is ultimately lowered into a tank of liquid nitrogen and kept at -196C. The merits of the process are, according to many in the scientific community, questionable.

Julie’s father, with whom she had an acrimonious relationship for reasons unexplained, was hesitant about her desire to have her body frozen. In what makes for upsetting reading, the father explains that if she were to be brought back in “say 200 years, she may not find any relative [sic] and she might not remember things and she may be left in a desperate situation given that she is only 14 years old and will be in the United States.”

Despite the father’s misgivings, the judge decided the case in Julie’s favour. He made four rulings:

Granting the mother permission to make arrangements for the preservation of Julie’s body;

Prohibiting the father from interfering in any way;

Appointing the mother – upon death – as the sole administrator of her daughter’s estate; and

Ordering the disclosure of the papers to the Human Tissue Authority.

In giving judgement for Julie, Peter Jackson J made it abundantly clear that his rationale for allowing the application and adjudicating on issues which would arise after death was because they would have a very real impact on the welfare – under English law and Article 8 of the European Convention on Human Rights (the right to a private and family life) – of Julie while she was still alive.

He made clear that the decision was not about the merits of cryogenic preservation, nor did it set a precedent for future cases of this kind. Quite the contrary. The judge highlights that the NHS Trust was uneasy about the way in which the American company dealt with the process. This was perhaps why he made the fourth ruling: that the papers be disclosed to the Human Tissue Authority. He adds at the close of his judgement that “the events in this case suggest the need for proper regulation of cryonic preservation in this country”.

It is clear from the above that this decision was about nothing more than the right of a child to die in the knowledge that her one remaining wish would be fulfilled. No precedents were set and the ethics and merits of cryogenic freezing were left well alone. The judgement itself stands as yet another exemplary instance of plain English and it demonstrates, clearly, the paramount importance of the welfare of children under English law.

]]>https://arguably2015.wordpress.com/2017/01/07/explainer-the-cryogenic-freezing-case/feed/2andy-zawaki-7260arguably2015Andy-Zawaki-7260.jpgOpinion: The Grave Human Cost of the Financial War on Terrorhttps://arguably2015.wordpress.com/2016/10/23/opinion-the-grave-human-cost-of-the-financial-war-on-terror/
https://arguably2015.wordpress.com/2016/10/23/opinion-the-grave-human-cost-of-the-financial-war-on-terror/#respondSun, 23 Oct 2016 07:34:33 +0000http://arguably2015.wordpress.com/?p=1114Read more "Opinion: The Grave Human Cost of the Financial War on Terror"]]>NOTE: this is a re-post. If you enjoyed it, please also check out the original over at Your Rights Matter.
Credit: Telegraph

[P]roscribed groups in those areas … are the gatekeepers. How can we go through the gatekeepers to reach the neediest people in Syria [or] Somalia?

Above are the words of Dr Hany El-Banna, Chairman of the Muslim Charities Forum, giving evidence to a Parliamentary Joint Committee. Dr El-Banna’s concern lies with the UK’s “monstrously” broad Terrorism Act 2000, sections 16 and 17 of which criminalise the making of “money or other property” available to a group when the provider “knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism”. In other words, recklessly or unintentionally providing money or property to terrorists can result in you being labelled a supporter of terrorism. The label comes packaged with a potential 14 years behind bars.

The UK is not alone. As the rubble of the World Trade Centre smouldered, the United Nations Security Council was drafting Resolution 1373 (2001). Once enacted, it required all member states to criminalise, among other things, the financing of terrorism. There have since been numerous resolutions which have galvanised states around the issue and the hawkish gaze of the Financial Action Task Force continues to put pressure on nations to indict the financiers of terror.

While the rationale underpinning these provisions is to starve terrorist groups of financial resources, the unfortunate side-effect of casting the net so widely is that we risk literally starving the civilians under the control of terrorist groups.

Take the Islamic State as an example. We are continually disgusted by their senseless campaign of violence against people both within and outwith the territories of Iraq and Syria. As such, we rightly label them a terrorist organisation. However, the Islamic State is simultaneously a party to an armed conflict. The large swathes of territory which it controls still contain civilians like you and I. Recently, the UN Secretary General estimated that around 13.5 million of those civilians are in need of humanitarian aid.

Unfortunately, aid workers are growing increasingly wary of working in areas under the control of groups like the Islamic State due to stringent counterterrorism laws which are often coupled with extraterritorial jurisdiction – meaning that one state can prosecute you for crimes committed abroad. Similarly, the European Union is currently finalising a Directive which, if implemented, will oblige all member states to couple their terrorism financing provisions with extraterritorial jurisdiction.

One of the key problems, identified by Dr El Banna (above), is that aid workers may have to pay fees to armed terrorists at checkpoints to access civilians. In so doing, they risk being prosecuted. In fact, Lord Ashton recently confirmed the UK Government’s position that paying gate-keepers is criminal.

Tip of the Iceberg

Many countries, like the United States, go much further. They criminalise the provision of ‘material support’ to terrorists. This is defined extremely broadly and the US Supreme Court made clear that even advising members of such groups about how to negotiate peaceful agreements or engage in political advocacy could constitute a criminal offence.

What this means is that actively trying to prevent terrorist violence by talking to fighters and negotiating peacefully might just land you in jail. In a study I worked on I found that a number of European nations already have ‘material support’ provisions. Perhaps even more worryingly, the EU Draft Directive mentioned above also seeks to oblige all member states to criminalise providing ‘material support’ to terrorist groups.

As a result of decisions and provisions like these, Ben Emmerson QC recently found that many charitable organisations have started to self-censor and avoid areas under the control of armed groups. In his words, ‘material support’ provisions are having a “chilling effect on NGO operations”.

What makes this something of a catch-22 situation is that the criminalisation of real terrorist financing is an obvious necessity. This was clearly demonstrated, in 2013, when a Birmingham-based terror cell sought to use money raised under the guise of charity to design an attack based on the 2005 London bus bombings. Again, in the UK this year, an individual was convicted for raising money for terrorists via Twitter.

However, these cases have resulted in a global push to tighten the noose around the neck of legitimate charities looking to inject aid into crisis zones – charities now at risk of being unfairly labelled supporters of terrorism.

Balancing Act

From the above it should have become clear that a careful balance needs to be struck between suppressing actual terrorist financing and permitting principled humanitarianism. When money and other forms of aid are being injected into areas under the control of an armed group, lawmakers must accept that the accrual of some benefit to the association is inevitable. Equally, humanitarian workers must accept that the rules governing charities are often flouted by terrorist groups looking to covertly raise money for malicious organisations.

In seeking to reach an acceptable compromise between security and humanitarianism there are a number of options open to legislators. They could create a provision allowing for a judge to assess the status of a group before criminality can arise; or mimic the criminal codes of Australia, New Zealand and Sweden, all of which provide an exemption for humanitarian action. Additionally, proof of specific intention – rather than negligence or recklessness – to participate in a criminal act could be required to support a conviction. Finally, a requirement that use actually be made of the ‘material support’ to commit an offence would prevent peaceful political advocacy and nominal fees being considered criminal.

All of the above are viable and states which criminalise the financing of terrorism should reform their laws swiftly, before more civilians – involuntarily placed under the tyranny of criminals – are left to starve.

]]>https://arguably2015.wordpress.com/2016/10/23/opinion-the-grave-human-cost-of-the-financial-war-on-terror/feed/0icrc_2144711barguably2015icrc_2144711bOccam Blushed and the Brexiteers Rushed: The Question of Article 50https://arguably2015.wordpress.com/2016/07/11/occam-blushed-and-the-brexiteers-rushed-the-question-of-article-50/
https://arguably2015.wordpress.com/2016/07/11/occam-blushed-and-the-brexiteers-rushed-the-question-of-article-50/#commentsMon, 11 Jul 2016 18:01:39 +0000http://arguably2015.wordpress.com/?p=1074Read more "Occam Blushed and the Brexiteers Rushed: The Question of Article 50"]]>Charles I preparing to do battle with supporters of Parliament (Roundheads) during the English Civil War

A central component of the Brexit campaign was parliamentary sovereignty: more specifically, the need to “take back control”, as Lord Lester of Herne Hill QC explained in a recent letter to The Times. As such, it is time that we allowed it to take its course.

In Parliament today, Helen Goodman MP put the urgent question concerning the need for parliamentary approval of any decision to trigger Article 50 of the Lisbon Treaty to John Penrose MP, the Parliamentary Secretary. Article 50 makes clear that any decision to invoke it and to trigger negotiations to leave the European Union must be made within the confines of each individual Member State’s constitutional arrangements.

We live in a parliamentary democracy. A representative democracy. The reasons are plain: direct democracy does not work on such a large scale and nobody wants a fully fledged monarchy. That is why we plunge our hands deep into our pockets and fork out large sums of money to pay our MPs to make decisions for us.

In answering Helen Goodman’s question, John Penrose – a law graduate from the University of Cambridge, who has worked in the banking industry for a number of years – sought to decry and demean lawyers, 1,000 of whom today signed a letter explaining why it is that Parliament must vote on the question of Article 50; suggesting instead that this decision is for the new Prime Minister and her Cabinet alone. In light of his remarks, this short post will examine why, precisely, it is that such a monumental decision requires a full and proper, parliamentary debate followed by a vote.

In a fantastic article, Nick Barber, Tom Hickman and Jeff King take us back to a time of Kings, Queens and constitutional dilemmas. Specifically, we are taken to 1610, when renowned jurist Sir Edward Coke was handing down judgement in The Case of Proclamations (1610) 12 Co. Rep. 74. He asserted:

“…the King by his proclamation … cannot change any part of the common law, or statute law, or the customs of the realm …”

Above notwithstanding, in a swift rejoinder, Mark Elliot proposed instead that the Royal Prerogative could be harnessed to activate Article 50. He explains that the Government used the prerogative to join the European Economic Community and Parliament’s job was to implement that decision by crafting new legislation.

It becomes swiftly apparent that his argument, with respect, is sophistry at its finest. While they undoubtedly played separate roles in the beginning, to suggest that they must, therefore, continue to play those same roles at the end is false. This is because, since we joined the club, Parliament have created numerous pieces of legislation – chief among them the European Communities Act 1972 – which conferred rights on the British public. Once those Acts were created, Parliament reserved to themselves the power to dismantle them.

However, Elliot has a riposte. He explains that the ECA did not really confer any rights on us at all, but merely gives us the prospect of receiving rights from the EU.

Roughly translated, the interpretative principle of Occam’s Razor suggests that entities should not be multiplied unnecessarily. While initially simple (“just invoke the prerogative”), Elliot’s rationale, that the ECA is understood not to be conferring rights but merely “to be enabling the UK to discharge such obligations as it has from time to time under the EU Treaties”, is so unnecessarily nuanced and legalistic that it would undoubtedly make Occam blush.

An Act which acts as a conduit through which countless rights are conferred on the British people is as good as an Act directly setting out what those rights are.

In stark contrast, the reason why Article 50 must be subject to a Parliamentary debate is simple: Parliament is sovereign. If this were not the case, the House of Commons would become the puppet of an – as of Wednesday – effectively unelected Prime Minister and her Cabinet. They would be held hostage to a vote which was won on the basis of a squalid campaign which cast the majority of our politicians in their worst possible light. Indeed, a campaign subsequent to which numerous voters have regretted their decision to vote leave. In this connection, as John F. Kennedy presciently opined, “[t]he ignorance of one voter in a democracy impairs the security of all.” This is precisely why we do not have a direct democracy and precisely why we do not vest the power to take such monumental constitutional decisions in the Government alone and/or based on a highly flawed referendum campaign.

As David Lammy MP put it in Parliament today, it would also be to ignore the (timely) Chilcot Report which decried the Government for going to war in Iraq on the basis of external pressure and without a sufficient plan. Notably, the Report also criticised the operation of the Royal Prerogative: a completely undemocratic and anachronistic power which for years has been crumbling under the strength of our Parliamentary democracy.

By way of conclusion, Geoffrey Robertson QC has remarked that to invoke Article 50 without parliamentary consent would make a mockery of our representative democratic system which countless “Parliamentarians fought and died for in the civil wars of the 1640s.”

We all accept that the referendum result will be persuasive – seductive, even – but it is not decisive.

Our politicians should do their job and properly debate this issue before Article 50 is invoked.

Post Script:

1,000 lawyers have had their say. If you agree, have yours too by signing the petition below:

In a set of memoires published in 2002 Margaret Thatcher famously asserted: “[t]he blunt truth is that the rest of the European Union (EU) needs us more than we need them.” Today those are the words on the lips of the Brexiteers: a large swathe of our population who hope to end our membership of the EU on the 23rd June 2016.

I myself remain unconvinced. In an increasingly globalised world the sovereignty of individual nation states is losing currency. International trade, traffic and criminality are, in Thomas Friedman’s words, “flattening forces” which press us ever closer together.

In light of the above, I intend in what follows to map out why I believe that we should embrace the opportunity to cooperate with our European neighbours and why we should be proud of what amounts to the most successful peace project in history.

Some history

In 1950, as Europe mopped up the blood of World War II, the European Coal and Steel Community (ECSC) was forged. Its Treaty formalised an alliance between Belgium, France, West Germany, Italy and the Netherlands. Their shared goal was to establish a common market which would, as the then French Foreign Minister put it, “make war not only unthinkable but materially impossible.” From the ECSC sprouted the European Economic Community (EEC) which eventually blossomed into the European Union when the Maastricht Treaty was signed in 1992.

Nigel Farage has often remarked that the Union was supposed to be nothing more than a market. However, if the fact that a key facet of its design was to make war an impossibility isn’t enough to persuade the reader of its political raison d’être, Labour MP Alan Johnson explains in a speech for Chatham House that all of the debates surrounding the 1975 in/out plebiscite concerned and acknowledged the political nature of the Union: “[i]ndeed, the creation of a European Parliament was central to the argument.”

European co-operation in the fields of crime and counter-terrorism

Keir Starmer QC – former Director of Public Prosecutions – made a strong case earlier this year for retaining our place within the Union. His article is well worth a read as he discusses the benefits of various aspects of the EU’s legal machinery. For example, Europol, which contributes to more than 13,500 cross-border investigations annually; and the European criminal records information system, allowing EU states to collect and share data on criminals anywhere within the Union. As Starmer puts it:

No home secretary would want to have to explain to the family of a victim killed by someone on bail that, had the details of a previous conviction in the EU been available earlier, the suspect would never have been bailed at all.

Arguably even more useful is the European Arrest Warrant (EAW). Before the EAW, states had to orienteer their way through a swamp of bureaucracy and come up against constant legal obstacles while attempting to extradite suspected criminals, or have them returned. Starmer uses the example of Rachid Ramda who could not be extradited for his alleged involvement in the 1995 Paris metro bombings for over 10 years. Today, with the help of an EAW, Jeremy Forrest, a criminal from my own home town of Eastbourne, was apprehended and swiftly returned from Bordeaux where he had fled with a schoolgirl. Far more pertinent in light of the recent terror attack in Brussels was the swift return of Hussain Osman, an accomplice in the London 7/7 bombing who is now serving a lengthy 40-year prison sentence in Britain.

EAWs are not perfect and have been used too frequently, in relation to petty crimes and with little evidence by some nations. However, before EAWs, states had to rely on a matrix of different bilateral (between two states) and multilateral (between more) extradition treaties in an effort to have suspects dragged before a court. An unnecessary and lengthy process, sliced down to size by the Union.

In terms of free movement, the UK is having her cake and eating it too. While we are a member of the EU, we are not a part of the Schengen zone. This means that people, including those who would do us harm, cannot simply wander unchecked across borders. However, as Malcolm Rifkind explains, we have the benefit of the Schengen information databases and are a full member of the interpol and EAW systems; making tracking down, arresting and extraditing attackers far easier.

Human rights at home

The British people have benefited enormously from European regulations in terms of workers’ rights. Rights which, unhappily, our government frequently opposed.

To provide just a couple of examples. The Working Time Directive in 1998 gave workers across Europe the right to paid annual leave and enhanced health and safety by, among other things, restricting the amount of hours employees can be forced to work at night. In 2010, another important Directive was enacted which provided for paid parental leave from work after having a child. The United Kingdom opposed both of them. In the words of employment law barrister Sean Jones QC, our government “fought tooth and nail against the introduction of the Directive[s],” even bringing a case against the Council of the European Union, seeking to get the former Directive annulled.

Michael Ford QC also explains in an extensive article on the subject that the European Union’s rights are not empty words. Directives impose obligations on states to provide “effective, proportionate and dissuasive” remedies where employers breach EU regulations. This is crucial because it means that if your boss doesn’t protect your basic rights as an employee, the UK has to grant you a proper remedy.

Human rights abroad

There are many problems facing the world in the 21st century. As the Islamic State continue to empty nations as large as Syria, Russia tests the waters in Ukraine and elsewhere. All the while, China’s gaze is fixed on the South China Sea and Donald Trump has somehow become the Republic nominee in the United States of America.

No single state can tackle these problems alone. Kofi Annan, previously Secretary-General of the United Nations, said as much in his plea for us to remain in last week’s edition of the New Statesman. Furthermore, just last night during the BBC debate on the EU, Caroline Lucas asserted that the Union is “the biggest peace project we’ve ever had.” She was not wrong.

The Union, which combines the force of 28 of the most powerful and affluent nations in the world, has used both its political and monetary allure to bring stability to Eastern Europe, a region ravaged by war throughout the 1990s. The Union, is also able to flex its considerable political muscles during international negotiations further afield and played a key role in securing a successful Iranian nuclear deal. When things have gone awry and the negotiation stage has passed, the EU have also mobilised peacekeeping forces across the world. Their militias have presided over a sharp fall in attacks by pirates in the oceans off of Somalia and they have helped quell violence and train local forces in Mogadishu and Bosnia – stabilising both regions in the journey towards a lasting peace.

Mary McAleese, former President of Ireland, has also implored us to remain on behalf of the Irish people. She explains that the EU guarantees the free movement of the hundreds of thousands of Irish people living in Britain and vice versa:

No one can say for certain what rules would apply to the movement of peoples between our two islands after a Brexit.

While the referendum this Thursday is for us – the British people – and us alone, we must be cognisant of the ramifications our decision will have for others around the world.

In a nutshell, then, I will be voting to remain because the European Union is a potent force for good in the world. It makes itself felt in conflict zones and its expansionism has given more and more nations the opportunity to plant the seeds of democracy where previously despots reined unchecked. It prevents big businesses from abusing their workers, has a bargaining power far larger than the sum of its parts and has precluded war in Europe where, for time immemorial beforehand, this continent was awash with tyranny and violence.

Is it a perfect institution? Of course not – but no institution is. As Winston Churchill himself once said of democracy: “[it] is the worst form of government, except for all those other forms which have been tried from time to time.” In the same way, the Union is an imperfect peace project, which is currently the best we’ve ever had. We should be proud of our membership and we would be silly to squander it based on the rhetoric of fools – like Boris Johnson – who have rushed in where Angels have feared to tread.

Yesterday marked the untimely death of Muhammad Ali. Born Casius Marcellus Clay, Jr. on 17 January 1942, Ali discarded his birth-name upon entering the Nation of Islam in 1964, declaring that Casius Clay was “a slave[s] name” and one which he neither chose nor wanted. Not only was Ali a world-class boxer, he was a lover of the spoken word, a deeply religious man and a champion of human rights. It is here, in Ali’s rich and fascinating human rights record, rather than his time spent in the ring, that we find the focus of this obituary.

Our story begins on 28 April 1967, on which day Muhammad Ali refused to fight in the Vietnam War on behalf of the United States of America. As a result, he was unceremoniously stripped of his heavyweight title and given a 5 year prison sentence.

I ain’t got no quarrel with those Viet Cong. No Viet Cong ever called me a nigger … I’m not going 10,000 miles from home to help murder and burn another poor nation simply to continue the domination of white slave masters of the darker people the world over.

Legally, he claimed the status of conscientious objector based on his adherence to Qur’anic scripture. The First Amendment to the Constitution of the United States embraces the free exercise of religion and subsequent legislation gave people with sincere opposition to war, based on religious belief, the right to exempt themselves from drafting.

Ali lodged a 6 page letter with the Draft Board, asking them to re-open his application. The Board refused and Muhammad Ali’s appeal eventually made it to the Supreme Court of the US.

In Clay v United States (1971), the Justices found unanimously in Ali’s favour. Mr Justice Douglas’s opinion is by far the most illuminating. He stated:

That belief is a matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute as it did in … the Military Service Act of 1967 …

His judgment, while concise, is saturated with analysis of the Islamic conception of a just war and constitutes a welcome engagement with the right to freedom of religion. Rigorous analysis of the competing interests at stake is particularly important in cases of conscience where the objector is often faced with a stark decision: betray his conviction or forego his liberty.

The judgment foreshadowed far later developments at the European Court of Human Rights. The European Convention protects freedom of religion, but qualifies the right to “manifest” one’s beliefs in certain situations. Yet, it was not until Bayatyan v Armenia in 2011 that the Court finally held, in short, that members of the Council of Europe could no longer prosecute genuine conscientious objectors to war.

It is fair to say that were it not for courageous, conscientious objectors like Muhammad Ali and Vahan Bayatyan, unbridled and compulsory military conscription would still be entirely permissible.

Muhammad Ali’s human rights work was not restricted to his own litigation. In 1978, he visited the United Nations Special Committee against Apartheid. According to the UN website, he came bearing a “message of peace and spirituality” and during his visit he gave an impassioned speech to the Committee:

Regardless to man’s title, regardless to man’s wealth, rank, opposition; if the heart is not great, then he cannot be great. But, if the heart is great, that man remains great under all circumstances: rich or poor, large or small …

Implicit is the notion that we are deeper than our flesh: it is what resides in our hearts and minds that matters. An adamant practitioner of his preaching, Ali conducted various missions alongside the UN, including a successful mission to rescue a number of hostages in Lebanon in 1985 and participation in the delivery of humanitarian aid to various developing nations.

Perhaps most incredibly, he flew to Baghdad in 1990 to meet with Saddam Hussein. Vehemently opposed by the Bush administration, Ali ventured to Iraq as part of a peace delegation seeking to protest against the rhetoric of war and to demonstrate that diplomacy worked. Despite the vast obstacles standing in their way, Ali and the delegation managed to return with 15 American hostages.

[D]istinguished individuals, carefully selected from the fields of art, literature, science, entertainment, sports or other fields of public life, who have agreed to help focus worldwide attention on the work of the United Nations.

One of Ali’s most important visits as a Messenger was to Afghanistan in November 2002. He arrived at Kabul airport on 17 November. During his stay he spent time at the Karte Sei High School – supported by UNICEF – before proceeding to a pioneering World Food Programme women’s bakery project which was, at the time, providing bread to 250,000 people.

During and after his visit Ali dished out praise and inspiration, describing his admiration of the girls who were back in education despite the hardships they faced before his visit and of the hard work done by both charities and the people of Afghanistan to abolish poverty. In turn, Angela Kearney of UNICEF described the profound impact Ali’s visit had on the children of Kabul.

When Ali declared, having defeated Sonny Liston in 1964, “I shook up the world! I shook up the world!” he could not possibly have known in quite how many ways he would break down social prejudice, in quite how many people he would inspire selflessness, how many Americans he would rescue, how many children he would preach to and quite how significantly he would alter our collective worldview.

No obituary could do justice to the magnitude of Ali’s celebrity as both a boxer and a human rights activist – a celebrity which he invariably used to “help lift up humanity”. It is in the youth of today that his legacy will live on. As such, I leave the reader with an extract from a heart-warming letter written to the children of Kabul which, I am certain, is equally applicable to children the world over:

I want to thank you, my young friends, for showing me how strong you are in spite of the hardships your country still faces. You must keep that strength. You must continue to hope for a brighter tomorrow. You are the life and soul of Afghanistan.

With love,

Muhammad Ali

]]>https://arguably2015.wordpress.com/2016/06/05/with-love-muhammad-ali-a-your-rights-matter-obituary/feed/0120117065443-muhammad-ali-1963-horizontal-large-galleryarguably2015Schedule 7 and the Erosion of Privilegehttps://arguably2015.wordpress.com/2016/04/12/schedule-7-and-the-erosion-of-privilege/
https://arguably2015.wordpress.com/2016/04/12/schedule-7-and-the-erosion-of-privilege/#respondTue, 12 Apr 2016 18:08:29 +0000http://arguably2015.wordpress.com/?p=782Read more "Schedule 7 and the Erosion of Privilege"]]>NOTE: This is a re-post. Go check out the original over at Your Rights Matter: http://yourrightsmatter.wix.com/yrmsussex#!Schedule-7-and-the-Erosion-of-Privilege/c1sp5/570d21580cf2e66d024c0477.

The European Convention on Human Rights (ECHR) was once likened to a ‘living tree capable of growth and expansion within its natural limits’. And grown it has. Fed facts by the population of Europe and watered by judges, its initially frugal articles have blossomed into fuller, more nuanced provisions.

Article 6 is a prime example. It protects our right to a fair hearing. This includes a right to have a lawyer, to call our own witnesses and examine those against us, and to be presumed innocent until proven guilty. Conspicuously absent, however, is the privilege against self-incrimination; an entitlement created by the judiciary of the United Kingdom long before the ECHR came to be. Initially, it was hardly used in Britain. Suspects were not permitted representation, meaning that a failure to respond to incriminating evidence was fatal. Once the prohibition on counsel was relaxed, the privilege was used with more frequency. Today, the common law principle is engaged whenever there is a real and appreciable risk of criminal proceedings being brought.

Given its omission from the ECHR, when Mr Funke asked the European Court of Human Rights (ECtHR) in 1993 to find a violation of article 6, after French authorities subjected him to a fine which exponentially increased all the while he refused to cooperate, few were holding out hope for a judgement in his favour. Despite all odds the Court found that he had every right under article 6 not to contribute to incriminating himself. By virtue of the Human Rights Act 1998, there are now two parallel principles protecting our right to insist that the prosecution prove the case against us.

Mrs Beghals’ Case

Unfortunately, our privilege is under threat. In Beghal v. Director of Public Prosecutions [2016] UKSC 49 Mrs Sylvie Beghal was travelling back from France where her husband, a man previously convicted of a terrorism offence, lived. She returned on 4 January 2011 and was taken aside at the airport by officers who proceeded to ask her a number of questions relating to her trip. Her lawyer was not present. They explained that although she was not a suspect they were asking her questions to determine whether or not she was a person concerned with the commission, preparation or instigation of terrorism.

The officers had relied on schedule 7 of the Terrorism Act 2000; a collection of ‘breathtakingly broad’ powers conferred on the police to stop people passing through airports, question and search them and even detain them for up to nine hours at the time Mrs Beghal was questioned, though this has since been reduced to six. Under schedule 7 there is no requirement that the officers even have a suspicion that the person be concerned with terrorism.

Mrs Beghal refused to answer most of the questions and was prosecuted for non-cooperation. While ultimately conditionally discharged, Mrs Beghal faced a potential three-month prison sentence for failing to answer the officers’ questions. Her appeal against conviction eventually made it to the Supreme Court where she claimed, among other things, that her privilege against self-incrimination had been violated.

Judgement

Lord Hughes, giving the leading judgement, concluded that a trial judge’s power to exclude evidence where its inclusion would be unfair makes it nigh on impossible for a prosecution to succeed based of schedule 7 questioning. He went further, explaining that article 6 was not engaged because Mrs Beghal was not charged with any offence.

In an incisive dissent, Lord Kerr points out the flaw in his fellow judge’s reasoning. “[T]he protection afforded by the privilege’ he asserts ‘is against the risk of prosecution rather than conviction”. As such, while Mrs Beghal might have been able to get the evidence excluded at trial, she would not be able to ensure that she was not prosecuted at all off the foot of that evidence. Therefore, the privilege against self-incrimination was violated.

Lord Kerr’s approach must be correct. There is no clearer evidence of Parliament’s intent on the matter than their refusal to implement the recommendation made by David Anderson QC, the Independent Reviewer of Terrorism Legislation, that a statutory bar be included, precluding the use of any incriminating answers as part of a subsequent trial.

Comment

While it is easy to sympathise with the officers’ desire to quiz Mrs Beghal specifically after she visited a convicted terrorist, the fact that schedule 7 doesn’t require even a whiff of suspicion means that officers effectively have carte blanche, making the provision ripe for abuse. In fact, a similar power was found to be incompatible with the right to respect for ones private and family life back in 2010. One study also suggests that people of Asian descent are much more likely to be stopped and are usually detained for far longer than their white counterparts, raising legitimate concerns about ethnic profiling.

The risk of abuse is magnified if one accepts the Supreme Court’s logic that those detained under schedule 7 have not been charged. As Liberty noted in their intervention in Beghal, where they are not officially charged an

unscrupulous officer [could] deliberately … delay charging or arresting a person stopped under Sch. 7, so as to use his compulsory powers, obtaining evidence which is admissible in criminal proceedings, with no privilege against self-incrimination or even the protection of a caution

In the end, the question is far bigger than just Mrs Beghal. It is about how far the government can acceptably erode our rights and privileges in the name of counter-terrorism. I would suggest that the schedule 7 powers go beyond the pale. They are over-broad, liable to create a climate of impunity in relation to ethnic profiling and destroy age-old rights and privileges without creating any additional safeguards.

Although factually Mrs Beghal’s case is perhaps not an ideal one on which to rest such a crucial appeal, she is likely to take a trip to Strasbourg and I hope that for the sake of the broader public interest she will find favour with the European Court.